Report (2nd Day)
62: After Clause 28, insert the following new Clause—
“Power to rename council tax benefit
(1) The Secretary of State may by order provide for the benefit referred to in section 123(1)(e) of the Social Security Contributions and Benefits Act 1992 (known at the passing of this Act as council tax benefit and referred to below as “the relevant benefit”) to be given instead, either generally or in cases prescribed by the order, a name prescribed by the order.
(2) An order under this section may—
(a) amend references to the relevant benefit in any Act (whenever passed) or in any instrument made under any Act (whenever made);(b) make provision about the interpretation of references to the relevant benefit in other documents;(c) make different provision for different areas.(3) In subsection (2)(a) “Act” means—
(a) an Act of Parliament,(b) an Act of the Scottish Parliament, or(c) a Measure or Act of the National Assembly for Wales.(4) The power to make an order under this section is exercisable by statutory instrument.
(5) Subsections (3) to (5) of section 175 of the Social Security Contributions and Benefits Act 1992 (general provisions as to regulations and orders) apply in relation to the power conferred by this section as they apply in relation to a power conferred by that Act to make an order.
(6) The first order under this section may not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.
(7) A statutory instrument containing an order under this section to which subsection (6) does not apply is subject to annulment in pursuance of a resolution of either House of Parliament.”
My Lords, I will speak also to the other government amendment in this group. Today we return to an issue raised in Committee by my noble friend Lady Turner: the continuing problem of poor take-up of council tax benefit among pensioners. We have listened to the debate and examined the evidence—for example, the research provided for the Return to Rationing? campaign led by the Royal British Legion. We accept that many of the ex-service community aged over 65 would find it easier to maintain a healthy lifestyle if they took up their entitlement to the financial support available to them. In particular, as I am sure noble Lords are well aware, the Royal British Legion has focused on the impact that a simple name change—from council tax benefit to council tax rebate—could have on both take-up of the entitlement and, more widely, pensioner poverty.
I pay tribute to my noble friend, who has an amendment to move after this, and to the Royal British Legion for all its dignified efforts in highlighting this important issue. Improving the take-up of such entitlements as council tax benefit and pension credit is a key component of our strategy to ensure that pensioners in Britain no longer live in poverty. The Government have taken real action to tackle pensioner poverty, helping 900,000 pensioners out of poverty since 1998, but we know that we need to do more and are committed to doing so.
In Committee there was considerable support from all sides of your Lordships’ House for a name change along the lines suggested by my noble friend. As promised, the Government considered all the arguments carefully over the summer. Having done so, we agree that a name change, from council tax benefit to council tax rebate, would reflect the true nature of the benefit. A change has the potential to improve the take-up of this important entitlement. We respect that many pensioners, for various reasons, are reluctant to claim a benefit, despite the fact that council tax benefit is, in essence, a rightful reduction in the council tax that they are liable to pay, and despite the fact that claiming it could help to lift them out of poverty. This is something on which the Government intend to act. We believe that we should do whatever we can to remove any obstacles to claiming a rightful entitlement. Indeed, we are the first Government to mount a major programme of take-up activity across pensioner benefits. As such, I am very happy to state that the Government intend to make this name change to “council tax rebate”. I wish to put that clearly on the record.
As we made clear in Committee, though, the introduction of a name change is not a trivial matter for the 380 local authorities that administer the benefit. There are practical administrative implications and potentially significant costs to central and local government; for example, in making changes to IT and references to the benefit in all manner of forms and leaflets. We need to get this change right and therefore need to carry out further work to better understand how best to go about doing so and the implications. We will work closely with local authorities and key partners such as the Royal British Legion and Age Concern to carry out this work as swiftly as possible. Given the need for this further work, though, I am afraid that we can neither make the name change in this Bill nor set the precise timetable for doing so. The amendment we have tabled therefore provides an order-making power which will allow a name change to be made quickly once we have completed the additional work needed.
Noble Lords will be aware that the Delegated Powers Committee reported on the amendment before us. While content with the delegation in principle, the committee had concerns with the proposed arrangements for parliamentary control. As drafted, the power would be subject to affirmative procedure on its first exercise, and thereafter subject to negative procedure. The committee recommended that any order which changes the name of the benefit should be subject to affirmative procedure. It is not the Government's intention to chop and change their mind by choosing one name and then another. However, I am very happy to undertake to come back at Third Reading with a further short amendment to implement the committee's recommendation.
I know that this amendment does not fully meet our shared desire for this change to be made straightaway; neither does my noble friend’s amendment, which we will consider shortly. I hope that the amendment we have tabled and the strong commitment that we intend to make this change, and to do so as quickly as possible, are reassuring to my noble friend, all noble Lords and the Royal British Legion. I beg to move.
My Lords, I thank my noble friend for his statement in support of the amendment before the House. When I first saw the amendment, I was not very happy with it as I thought that it was not positive enough. I have been in touch with the Royal British Legion, which has issued briefing to me and, I believe, to other Members of the House. As far as I can see, all the amendment does is to commit to a change at some time in the future, but not necessarily immediately. It does not say what name would replace the term “benefit”. My noble friend rightly says that some veterans do not claim the benefit to which they are entitled because they do not want to claim a benefit. The British legion has made extensive inquiries, done a lot of research and holds the view that changing the name of the benefit to “rebate” would result in a large number of people claiming it who do not now do so. Therefore, the legion thought that Amendment 63 would be the simplest way to deal more immediately with the problems that these veterans and many pensioners have as regards claiming money which is rightly theirs, but which they refrain from claiming because it is called a benefit.
As the legion says in the briefing it has issued to many noble Lords, what’s in a name? The answer is:
“Dignity and respect for older veterans”.
This is very much what it is all about. I shall speak to Amendment 63 when it is called. I welcome the assurance given by the Minister that he will come back at Third Reading with something—I hope—along the lines that we have suggested; a simple amendment to change the word “benefit” to “rebate”.
In the mean time, I thank the Minister for the firm assurances that he has given, which I respect. I am sure that he will stand by what he has said to the House this afternoon. This amendment, standing on its own, does not go anywhere near far enough towards what the legion wanted. It simply wanted what is set out in Amendment 63.
My Lords, we welcome the government amendment. As the Minister said, the noble Baroness, Lady Turner, also deserves congratulations on bringing this issue to the attention of your Lordships. The Royal British Legion has been highlighting for some time the peculiar case of the benefit that is really a rebate. If the simple process of changing the description from benefit to rebate allows more pensioners to feel able to take up what they are rightfully owed, we welcome this as an important step to cutting pensioner poverty. We are pleased to take on trust what the Minister said about the commitment to making this change. My right honourable friend David Cameron has pledged to support this change, and I will be pleased to inform him of what is effectively cross-party support for the amendment.
I am sure, although I would not expect the Minister to admit it, that the change is probably the result of a titanic struggle in the Treasury, between that part that has to look after pensioner poverty targets and those who jealously guard the coffers. I am delighted that the Minister was on the winning side, and in this case the right side, of the battle. I hear what he said about the Delegated Powers and Regulatory Reform Committee’s recommendations, and I am prepared to accept the consequent changes at Third Reading. With those remarks I, and we, reiterate our support for the amendment.
My Lords, for the sake of completeness, I shall make this all-party. The campaign that the Royal British Legion has run has been exemplary; but it is good at that. It is plugged into the local community and it does exemplary work. It has had success, and I am pleased for it that that is the case. I, too, pay tribute to the noble Baroness for taking the initiative and tabling her amendment.
I am happy to take the assurances that the Minister has made from the Dispatch Box about timing, delegated powers and all those matters. We need to be careful about the fact that this is not going to be as efficacious as some of us would like. It will help, and it is worth doing, which is why I am in favour of it, but it is not a substitute for take-up campaigns. The department must not think that, because it is renaming the benefit, suddenly people are going to run into the arms of the local authority and start making claims afresh without further campaigns at a national and a local level. That work goes on from time to time, and my experience is that the department tackles these things in waves. Sometimes a campaign is being run over a period of time and you can check its effectiveness.
I urge the Minister to go back to the department and say that what would make this a real success would be that around the rebranding—I do not mean that to sound diminutive of this change because I think it is worth having—there should be a sustained and concerted national and regional set of campaigns that say, “We are changing the name and we hope that will reduce the stigma”. Council tax is going to become much more of a burden on low-income households over the next three to five years. In our innermost hearts we all know this. Any Government of whichever stripe—or the department or the local authorities that are in charge of this—should take the opportunity of the change to run a sustained campaign of public take-up, irrespective of what the benefit is called: otherwise, in the next three to five years, council tax will become a real burden for many low-income families.
My Lords, did the noble Lord say that he was thinking about coming back at Third Reading with a shorter amendment to this effect? If he is, could he accept one of the concerns of the noble Baroness, Lady Turner, by putting the new name of the benefit into the new amendment?
My Lords, I am grateful for the support that the amendment has received from the noble Lord, Lord Freud, and his colleagues. There is no titanic struggle within government. We are all of one mind on this—as ever—and work in a joined-up way.
The noble Lord, Lord Kirkwood, said that it was not efficacious in every way, but that he does support it. He is absolutely right that, in itself, it is not all that we need to do. We have heard powerful arguments about take-up campaigns, so I will not use the time of the House to run through them. The aim is to enable people to make one claim with one phone call for council tax benefit and housing benefit. There will be home visits, and we have provisions in the Bill to use data to reach people more effectively. Those efforts must continue.
Let me make clear what I intend to do at Third Reading. The amendment that I proposed to bring forward has regard to the recommendation of the Delegated Powers Committee. At present, the power in the amendment will be subject to the affirmative procedure on first use, and negative procedure on second use, if there should be one. The Delegated Powers Committee recommended that the procedure should be affirmative throughout, and we will accept that recommendation. I did not propose—and would not wish to mislead my noble friend Lady Turner or the noble Countess, Lady Mar, by suggesting—that we would do anything further at Third Reading.
I will stress one point that we may revisit when discussing the next amendment of my noble friend Lady Turner. The option of simply putting a name change in the Bill does not have the immediate effect of changing council tax benefit to council tax rebate. Any such provision would need to be subject to commencement provisions. Under the Bill, those provisions are commenced when the Secretary of State judges that it is appropriate to do so. Moreover, the Secretary of State would commence them under a commencement order, which is not a parliamentary process and would not be subject to the affirmative procedure. The fact that an alternative name is written in the Bill does not mean that things would happen straightaway—the procedure would have to be introduced in a commencement order by the Secretary of State.
That is a parallel situation to introducing and using the power that we have in the amendment. The powers that we have in the Bill around commencement orders would enable transitional provisions to be brought forward, and would enable adjustments to secondary legislation, but they would not enable adjustments to primary legislation. There is a raft of secondary and primary legislation containing the term “council tax benefit”. Perhaps here I am pre-empting the debate that we will have later. The amendment would not be sufficient to enable us to do everything to introduce the change that we all want. It says nothing about how expeditiously the change could be made. There is probably a lot of legislation for which the Secretary of State has not commenced provisions. There is no compulsion on the Secretary of State to take this route.
Therefore, I honestly do not believe that it is as effective a route as the one that we have outlined in these provisions. I believe that these measures give the Royal British Legion what it wants—and, indeed, what we all want—in a way that is, with great respect, more effective than the amendment that we are about to debate. Perhaps we will come back to that shortly. I am grateful for the support for this amendment and believe that we have a shared view of what we want to achieve.
Amendment 62 agreed.
63: After Clause 28, insert the following new Clause—
In section 123(1)(e) of the Social Security Contributions and Benefits Act 1992 (c. 4) (income related benefits) for “council tax benefit” substitute “council tax rebate”.”
My Lords, I moved this amendment in Committee, when I had a very sympathetic response from the Minister, as we have had today. However, it seems that the text of his amendment does not go quite far enough. Indeed, I have been in touch with the Royal British Legion about the text and that is also its view. It thinks that the Government’s wording will not have a very immediate effect, whereas with the change that it recommends, as suggested in this amendment, there would be a chance of an immediate effect in the legislation, which is what the Legion is anxious to achieve.
I understand that the Minister is offering to come back at Third Reading but in his most recent statement he amplified what he meant by that and it simply would not involve referring to the text of my amendment. I cannot hold him to saying that he made a commitment to bring the matter back at Third Reading because clearly that is not what he did. One would not be able to hold him to that, nor would I attempt to do so.
If we could pass this amendment, it would make it very clear to everyone that that was what the House of Lords intended with regard to this benefit and the veterans. That is very important. Despite what has been said by the Minister and despite the support given for his Amendment 62, I do not see why we could not give some indication that what we were really after was the wording in Amendment 63. If that were on the record, it would clearly indicate to everyone that it is believed that veterans should be able to have their money via a rebate rather than a benefit. According to the research that the Legion has conducted, that would make an enormous difference to a lot of pensioners, many of whom are in relatively poor circumstances, and it would be of enormous benefit to a large number of people.
I should explain that I am a supporter of the Royal British Legion and the work that it does for veterans because I myself am the widow of a veteran. My late husband was a former RAF pilot who was a supporter of the Legion, and I know that he would want me to continue to try to achieve what the Legion is after here. I beg to move.
My Lords, just to encourage the Minister, perhaps I may remind him that recent polling for the Royal British Legion shows that 75 per cent of members of the public agree that renaming council tax benefit as a rebate might encourage more people to make a claim for it. That is an important indication.
My Lords, perhaps I may ask the noble Lord what the difference is between changing the name of this benefit and the name changes that have occurred with other benefits—sickness benefit right through to employment support allowance, and unemployment benefit right through to jobseeker’s allowance. How have those name changes taken place and what is the difference between changing their names and changing this name?
My Lords, I also strongly support the amendment of the noble Baroness, Lady Turner of Camden. I feel very keenly that we should do anything we can to encourage and enable people who are poor and needy but are held back from applying by a very natural pride to claim what is their right as a rebate.
My Lords, I thank my noble friend for her amendment and all noble Lords who have spoken. Let me reiterate: we have a shared objective in encouraging greater take-up of the council tax rebate and recognising that a name change will contribute to that increased take-up, but it is not the only thing that will do so. We have to provide for it in legislation.
I shall start with the question raised by the noble Countess, Lady Mar, about what is different here from how we dealt with, for example, incapacity benefit and changed the arrangements to the employment and support allowance. That was done through a detailed legislative process. The noble Countess will recall that we had lots of debates in Committee and in your Lordships’ House. It was a full journey to deal with that legislation. I emphasise that simply putting a name change in the Bill in the way suggested of itself does not achieve anything. With those provisions there we would need to move further. We would need arrangements by which those provisions are commenced. Simply because they are proposed, as my noble friend suggests, does not mean that they will have immediate effect. Other things need to happen for them to come into effect.
I reiterate that it is not just a question of dealing with the general power of changing the name from council tax benefit to council tax rebate. There is a whole raft of other administrative, secondary and primary provisions that have the name in them which would have to be addressed. There is not provision in the Bill if the amendment were accepted to cover all those issues. I urge noble Lords to accept that doing it by way of the power that we have taken is a better process because it is subject to wider parliamentary scrutiny. In each case we have to work with local authorities and the British Legion. A lot of administrative work goes on behind all this—300-odd local authorities administer council tax.
I am persuaded by the process that the Minister is explaining to the House, but he might make more progress if he were to give some kind of timeframe when it would be possible to achieve this. I think it would be possible to do it from the beginning of the next financial year, which is a full six-month period. If he were able to give some indication to the House about how long it might take, he might have an easier ride in persuading the House that the amendment is flawed.
I understand the noble Lord’s point. I cannot give an absolute assurance because it depends on a lot of detailed work that needs to be undertaken with all the local authorities which, at the end of the day, administer the system. There are costs involved in changing IT systems; it is not straightforward. Whatever my answer to that would have been, in a sense it is the same whether you do it by way of power in the fuller way that we suggested in our amendment, or by the Secretary of State having to apply a commencement order but with lack of powers to deal with all the stuff that should surround it. That is the difference.
I should like to persuade my noble friend not to press her amendment as I believe that we are all on the same page on this. It would not be comfortable to vote against what the British Legion wants, but we do not need it as I believe that we have provided a proper, full and effective way forward to achieve what we all want. On that basis, I earnestly ask my noble friend not to press her amendment as I believe that we have achieved what she wants in the amendment that we accepted earlier.
I thank everybody who has participated in the debate, and my noble friend for the further assurances that he has given—in particular the assurance that apparently we are all thinking in the same direction and have the same objective. That is important, and I have registered it. I am grateful to the Minister for his comments.
In the circumstances, I shall not press the amendment today. However, there will be a further opportunity at Third Reading when another amendment may be forthcoming. It may not be what we want, but I shall not press this amendment today. Although I still feel strongly about it, we ought to respect the research done by the Royal British Legion, the amount of work it has put into its campaign, and its belief that a name change would assist an enormous number of people. Although that is most important, at this time I beg leave to withdraw the amendment.
Amendment 63 withdrawn.
Clause 31 : Relevant services
64: Clause 31, page 38, line 7, at end insert—
“( ) the provision of residential accommodation for P;”
My Lords, I shall speak also to the other government amendments in the group. As noble Lords will recall, during our debates in Committee I reaffirmed the Government’s commitment to align adult community care services with the right to control in the trailblazers. We made that commitment clear in the welfare reform White Paper. Adult community care services were excluded in the legislation to avoid duplicating existing community care and direct payments legislation.
During Committee, we listened carefully to the concerns noble Lords raised, and I recognised the importance of making clear in this Bill our original policy intent of aligning adult community care with the right to control in the trailblazers. That is why during the summer months we worked closely with the noble Baroness, Lady Campbell, and RADAR to develop this legislation. I believe that moving the exclusion for the purposes of the pilots effectively strikes the balance between putting in the Bill our commitment to alignment without compromising existing community care legislation.
We have developed these amendments in co-production with the noble Baroness, Lady Campbell, and RADAR, and I thank them for the work they undertook with us to enable these amendments to be tabled. I want to highlight how useful it has been to work with disabled people to get this legislation right. Without that input, we would not be where we are heading today. I am also delighted that the amendments have attracted support across the parties—the noble Lord, Lord Freud, and the noble Baroness, Lady Thomas of Winchester, have put their names to the changes and demonstrated the cross-party commitment that exists for this part of the Bill.
Turning to the amendments, there are three components that I believe are central to meeting the concerns raised here in Committee and also in the other place. First, Amendment 72 inserts Clause 36(3A) which removes the exclusion of adult community care services for the purposes of the pilot schemes. This is entirely in line with our original policy intent to test the effectiveness of alignment through the trailblazers.
Secondly, Amendment 73, which inserts a new clause after Clause 39, explicitly refers to the Secretary of State’s powers to issue directions under existing community care legislation. This is a key component because we can achieve the delivery of alignment through directions under existing enactments. Alignment means delivering the effect of the right to control to individuals in receipt of adult community care services.
Thirdly, Amendment 73 includes an order-making power that would enable the removal of the full exclusion of community care services at a later date, without recourse to primary legislation. A decision whether to remove the exclusion of community care services will be made once the trailblazers have been evaluated, and in line with decisions relating to wider rollout.
As we discussed during Committee, a decision will be taken on whether to extend the right to control based on the evidence from the trailblazers, in particular whether the trailblazers deliver better outcomes for individuals, better value for money for the taxpayer and are affordable. The Law Commission’s work on providing a clearer, more cohesive legal framework for adult social care will also be taken into account.
Community care is a matter which is devolved in both Scotland and Wales. Therefore the power to decide whether the exclusion of community care in relation to Scotland and Wales should be permanently removed will rest with the Scottish and Welsh Ministers, respectively.
The amendments demonstrate our commitment to alignment but take account of the Law Commission’s ongoing review of the legislation covering adult social care. They make clear the Government’s intention to deliver the significant improvements that disabled people are looking for in joined-up self-directed support. I beg to move.
My Lords, happy days! While many of us were having our summer holidays, the Minister and his officials were working—day and night, I am sure—over the summer with disabled people to bring back government amendments that truly reflect the aims and ambitions of the right to control. The amendments have been grouped separately, but I hope that the House will not mind if I speak very briefly to both. I was in the Chamber at 10.30 last night and, frankly, I have run out of puff.
Both amendments have taken my original amendments, the ones that I worked very hard on with disabled people and RADAR on social care alignment and right to control definition, and incorporate both of them more than adequately and, actually, far more than I expected.
This section of the Welfare Reform Bill has the potential to empower disabled people to become more active socially and economically by putting them in the driving seat of their support. There are hard times ahead for everyone who needs extra support to engage in their communities. More than ever, we need the right to control that support so that every penny is spent on what we know—what disabled people know—will make us independent and ready to take our part in society, whether that be work or other social responsibilities, such as bringing up families or volunteering. Both amendments take us towards that goal. They demonstrate a model of co-production between disabled people and government legislators and policy-makers. People think of co-production and think, “Is this a new buzzword by Jane Campbell?”. It is not because, for disabled people, co-production means simply that: we produce together. We are not just involved, we are not just consulted, we are there as equal partners in the outcome.
I pay tribute to the noble Lord, Lord McKenzie, and his officials for showing not only how co-production can be done, but actually genuinely doing it.
My Lords, we strongly support the amendments. My only regret is that the noble Baroness, Lady Campbell, is not wearing a T-shirt with “The Real Right to Control” emblazoned across it, as she suggested she would in Committee. I think she said that she would hand them out at Report. As she said, and as the Minister said, the amendments herald a real shift in power from the state to disabled people and pave the way for the right to control to become the genuine one-stop empowerment shop that we all want it to be. I congratulate the noble Baroness, Lady Campbell, the Minister, and RADAR, on working so hard to blaze a trail for the amendments. Let us hope that they are the shape of things to come. We on these Benches support the amendments.
My Lords, I am pleased to add my name to this set of amendments alongside those of the Minister, the noble Baroness, Lady Thomas, of the Liberal Democrats and, most importantly, the noble Baroness, Lady Campbell of Surbiton. It is a pleasure to support her as she has been such a champion for change in this area.
This amendment pulls in one of the most important areas of plannable expenditure on disabled people, in the shape of community care services. It was always most peculiar to pilot a right to control that explicitly excluded this expenditure. An individual needs to have control of the full gamut of services in order to reshape them effectively; otherwise he or she will not be freed from dependency and bureaucracy. In fact, it makes far more sense to base the right-to-control approach on community care services, which are likely to be required on a sustained and long-term basis, rather than on the more transitory requirements surrounding support for disabled people to secure employment, where the Bill was proposing a right to control. The late conversion smacks of the resolution of interdepartmental differences and, perhaps, difficulties in achieving joined-up government—this time not between the DWP and the Treasury but between the DWP and the DCLG. Once again the Minister has come out on the right side.
Less congratulatory, I re-emphasise a point that came up last week in Question Time when the Minister asserted that we on these Benches are planning to close down Access to Work as a result of our strategy to streamline welfare-to-work programmes in our work programme. I was able to assure him then that that is not the case. He should really leave the detailed exposition of our strategy to us rather than extrapolating it himself. The key distinction to make here is that the main components of our work programme incorporate mandatory elements, just as the Government’s Pathways to Work and Flexible New Deal do. Clearly, welfare programmes that include mandatory elements are, at first blush at least, unpromising candidates for right to control. The programmes included in the right to control, such as Access to Work, are essentially voluntary, which makes them suitable for this approach. Clearly there is unfinished business here in terms of establishing the dividing line between voluntary and mandatory activity. I shall read with interest the Government’s response to the consultation process on defining the eligibility for the right to control which we are promised later this year.
To revert to the narrower matter of the inclusion of adult social care, it would be churlish to complain about the timing of the amendment. The Government have considered the matter and come up with the right proposal, which we wholeheartedly support. I must register our thanks to the noble Baroness, Lady Campbell, who has worked so hard with officials over the summer to obtain this result.
My Lords, I thank all noble Lords who have spoken in support of these amendments. I shall start, if I may, with the noble Lord, Lord Freud. I agree wholeheartedly with the phrase that he used regarding the noble Baroness, Lady Campbell. She has been a champion for change.
On the exclusion of adult community care services, as we sought to explain in Committee, it was never the intention that they should be excluded. There were issues about how that should be reflected in the legislation, and that point in particular has driven this change. We have ended up where we always wanted to be. I accept what the noble Lord says about Access to Work—we should leave the detailed exposition of his policies to him. Once the detail is in place, perhaps he will take the opportunity to do that.
I am grateful to the noble Baroness, Lady Thomas, for her support. Returning to the noble Baroness, Lady Campbell, I think that co-production is, as she said, at the heart of this. She thanked me but, in terms of ministerial input, my colleague Jonathan Shaw has more responsibility in this area. The officials also worked very hard on it, perhaps while I was sitting on a nice warm beach somewhere. Perhaps we do not thank them enough except at the end of a Bill. So you must not congratulate me too much on this. I am delighted that we have ended up in the right place. I am particularly delighted that this has the potential to empower disabled people—to use the noble Baroness’s terms.
Amendment 64 agreed.
Amendments 65 to 67
65: Clause 31, page 38, line 13, at end insert—
“(4A) Subsection (4) is subject to section 36(3A) (which relates to pilot schemes) and to section (Power to repeal exclusion of community care services) (which gives power to repeal the exclusion of community care services).”
66: Clause 31, page 38, line 15, leave out from “services” to end of line 16
67: Clause 31, page 38, line 22, leave out from “services” to “and” in line 23
Amendments 65 to 67 agreed.
Clause 33 : Power to make provision enabling exercise of greater choice and control
68: Clause 33, page 39, line 16, leave out subsection (2) and insert—
“(2) Regulations under this section may, in particular, make provision for and in connection with requiring a relevant authority to take the following steps in relation to a disabled person (“P”) for whom it is obliged, or has decided, to provide, or arrange the provision of, relevant services—
(a) to inform P of the right to control conferred by virtue of the regulations, of the value of the relevant services to which P is entitled and of the choices available to P by virtue of the regulations;(b) to work with P to determine the outcomes to be achieved by the provision of the relevant services;(c) to work with P to prepare a plan (a “support plan”) setting out how those outcomes will be achieved;(d) to work with P to review and revise the support plan in prescribed circumstances;(e) if P so requests, to make payments to P in respect of P securing the provision of an equivalent service;(f) to the extent that P chooses to receive relevant services provided or arranged by the relevant authority, to provide, or arrange for them to be provided, in accordance with P’s support plan as far it is reasonably practicable to do so.”
My Lords, in moving Amendment 68, I shall also speak to Amendments 69 to 71.
In Committee debates on the Bill in this House, there was broad support for ensuring that the intended structure of the right to control was more clearly signalled in the Bill. The original wording of Clause 33 was deliberately broad to allow trailblazing authorities the flexibility to be innovative and to test the best ways of making the right to control work. It would have been sufficient to realise our commitments, but perhaps did not lay out those commitments as clearly as it might. Having listened carefully to the debates in Committee, we recognise that there is a balance to be struck between flexibility and clarity, which is why I bring this amendment before noble Lords today.
The amendments are designed to retain flexibility in the delivery of the right to control while reflecting clearly the commitments made in the welfare reform White Paper. It clearly indicates in primary legislation that the disabled person will be at the centre of the right-to-control process. As noble Lords have said, we have worked closely with the noble Baroness, Lady Campbell of Surbiton, in developing these amendments. Once again, my noble friend Lord McKenzie and I thank the noble Lord, Lord Freud, and the noble Baroness, Lady Thomas of Winchester, for demonstrating their support for the amendments. This kind of consensus underlines the importance that we all place on this policy.
Amendment 68 sets out the key components of the right to control process. In particular, it is a better reflection of our intentions in three key areas. First, the amended text makes it clear that authorities will be required to inform a disabled person of their right to control and the amount of money that is available for their support. This is entirely in keeping with our White Paper commitments, and will ensure that all disabled people in the trailblazing areas who are eligible for the right to control will be given the opportunity to access it.
Secondly, the amendment reflects our White Paper commitment to partnership working. It makes it clear that authorities will be required to work with the disabled person throughout the support-planning and review processes. This will ensure that the disabled person is truly at the centre of the process and that their support plan reflects their individual needs and ambitions.
Finally, the amendment reiterates the Government’s belief that disabled people should have choice and control over their support, whether they take a direct payment, choose to receive authority-commissioned services, or a mixture of the two. The amended text makes it clear that, where a disabled person allows an authority to arrange all or some of their support, the authority will be required to follow the individual’s support plan where reasonably practicable.
As the noble Baroness, Lady Campbell, said in the Committee debate on this clause, it is important that we get this right. As with all these things, we await the evaluation of the trailblazers, but I hope noble Lords will agree that this amendment is a real step in the right direction. I beg to move.
My Lords, I hope that this amendment is going to do something for the kind of case I have very much in mind, that of somebody with obsessive compulsive disorder. I mention a case where P—I take it that that is the patient—suffers from obsessive compulsive disorder and really can only work at home as self-employed. In the case I have in mind, P works in the field of journalism where she may earn nothing one week, £100 the next and then nothing for many weeks until she has built up a clientele. Will this amendment help her to work as much as she can without having to go back to square one and reapply for income support and any other benefits, thus having to fill in the forms again from scratch? I hope it does, but I would like to be reassured, or at the worst, to be told that it will not provide such flexibility. I think that the noble Lord, Lord McKenzie, knows the case I am talking about because I wrote to him about it right back in the early summer, but that is a long time ago now.
My Lords, once again we support this set of amendments, alongside the Government, the Liberal Democrats and the noble Baroness, Lady Campbell. We have just had the substantial debate on this issue when considering the previous set of amendments. This group makes it crystal clear that the disabled person, not the local authority, is in the driving seat when it comes to taking a decision on whether the right to control is appropriate. We welcome this clarity, just as we welcome a further step in giving people who live in difficult circumstances the freedom to run their own lives.
I thank noble Lords for their responses. In reply to the noble Lady, Lady Saltoun, I do not know personally the case she has raised, but I shall certainly discuss it with my noble friend the Minister. It does not speak directly to this set of amendments. However, I want to reassure her that there are arrangements in mainstream benefits for the averaging of benefit over the piece, and I would be delighted to ensure that we write to her on that basis. However, I do not think that her remarks speak directly to this set of amendments.
Amendment 68 agreed.
69: Clause 33, page 39, line 33, leave out paragraph (c)
Amendment 69 agreed.
Clause 34 : Provision that may be made about direct payments
70: Clause 34, page 40, line 12, leave out “(2)(d)” and insert “(2)(e)”
Amendment 70 agreed.
Clause 35 : Exercise of rights on behalf of persons who lack capacity
71: Clause 35, page 41, line 28, leave out “(2)(d)” and insert “(2)(e)”
Amendment 71 agreed.
Clause 36 : Pilot schemes
72: Clause 36, page 42, line 4, at end insert—
“(3A) Subsections (5)(a) and (6)(a) of section 31 do not restrict the power to make a pilot scheme; and accordingly a pilot scheme may relate to community care services.”
Amendment 72 agreed.
73: After Clause 39, insert the following new Clause—
“Power to repeal exclusion of community care services
(1) An order under this subsection may repeal section 31(5)(a).
(2) The power to make an order under subsection (1) is exercisable—
(a) in relation to England, by the Secretary of State with the consent of the Treasury, and(b) in relation to Wales, by the Welsh Ministers.(3) The power of the Secretary of State to make an order under subsection (1) is exercisable only if—
(a) the Secretary of State has previously made a pilot scheme that relates to community care services, and has in accordance with section 36(7) published a report on the operation of the pilot scheme, or(b) the Secretary of State has previously given directions under a relevant enactment with a view to enabling disabled people to exercise (either in England generally or in a specified area or areas) greater choice in relation to, and greater control over, the way in which community care services are provided to or for them.(4) In subsection (3)—
(a) “pilot scheme” has the meaning given by section 36(3);(b) “relevant enactment” means—(i) section 7A of the Local Authority Social Services Act 1970 (directions by Secretary of State as to exercise of social services functions), or(ii) section 47(4) of the National Health Service and Community Care Act 1990 (directions by Secretary of State in relation to assessment of needs for community care services).(5) The Scottish Ministers may by order repeal section 31(6)(a).
(6) An order under subsection (1) or (5) may make any consequential modification of section 31(4A) or 36(3A).”
Amendment 73 agreed.
Clause 40 : Regulations under section 33: control by Parliament or other legislature
Amendments 74 to 76
74: Clause 40, page 44, line 9, after “33” insert “or an order under section (Power to repeal exclusion of community care services)(1)”
75: Clause 40, page 44, line 12, after “33” insert “or an order under section (Power to repeal exclusion of community care services)(5)”
76: Clause 40, page 44, line 15, after “33” insert “or an order under section (Power to repeal exclusion of community care services)(1)”
Amendments 74 to 76 agreed.
Clause 41 : Interpretation of Part 2
Amendments 77 and 78
77: Clause 41, page 44, line 18, at end insert—
““community care services” means—
(a) in relation to England and Wales, community care services as defined by section 46(3) of the National Health Service and Community Care Act 1990 (c. 19);(b) in relation to Scotland, community care services as defined by section 5A of the Social Work (Scotland) Act 1968 (c. 49);”
78: Clause 41, page 44, line 26, at end insert—
““relevant authority” has the meaning given by section 32;
“relevant services” has the meaning given by section 31.”
Amendments 77 and 78 agreed.
Clause 43 : Report on operation of driving licence amendments
79: Clause 43, page 48, line 42, at end insert “or a travel authorisation”
My Lords, I am proposing this set of amendments, which I consider to be consequential on the first of them, Amendment 79, to achieve one simple objective: that the power of the Child Maintenance and Enforcement Commission to take away passports is subject to a sunset clause. This means that the arrangements will be brought into line with the way that the Government are proposing to proceed over the power to take away people’s driving licences. It will ensure that a proper report is made on how the arrangements are working in practice which this House can consider and on which it can take a view.
The subject was intensively debated in Committee and I will rehearse the arguments in as succinct a form as possible. The power for officials to remove people’s passports has been sought by the Child Maintenance and Enforcement Commission because the sanction has been found to be effective in other countries in persuading non-resident parents to pay up the child maintenance they owe. Great concern about this power has been expressed in the House. In Committee, my noble friend Lord Goodlad informed us that the Constitution Committee had concluded that suspending a person’s right to hold a passport should be the responsibility of judges, not civil servants. I will not repeat all the powerful arguments he made reflecting the views of the Select Committee, except to remind the House that the conclusion was based on a recognition that the right to leave and return to one’s country is recognised as a fundamental right in international law.
This Bill represents the second occasion on which such a provision has been included. Just last year, the Government withdrew a similar proposal in the light of these concerns. We on these Benches accept that the proposal is designed to tackle some of the most recalcitrant of non-resident parents and to be used only as a last resort. Our amendment is drawn up in this way to check that such wide powers are properly used. CMEC took over the responsibilities of the Child Support Agency less than a year ago, so we are not looking to invest a tried and tested agency with these powers. The Child Support Agency was widely and officially criticised for inefficiency; the concern is that CMEC will make mistakes and target with these powers an unacceptable number of non-resident parents who do not owe maintenance.
In Committee, the Minister tried to justify the different treatment of the powers over driving licences and passports. In his justification for a sunset clause on driving licences, he said:
“Clause 43 is intended to enable the DWP, the commission, the Department for Transport and the police to gauge whether there is any greater risk associated with an administrative as opposed to a court-based power to disqualify a person from driving, as well as evaluating its effectiveness in gaining compliance with child maintenance responsibilities”.
Exactly, one would reply. So why do not these arguments apply to passports? He said:
“I do not see a compelling case to justify piloting the travel authorisation passport power. That is because the concern raised by the committee”—
the Select Committee on the Constitution—
“primarily about the constitutional appropriateness of the measure, could not be addressed simply by a pilot in any event”.—[Official Report, 2/7/09; cols. GC 148-49.]
I imagine this distinction must puzzle the House as much as it puzzles me.
Surely the point of a pilot is to find out whether powers work or are subject to abuse. What is the difference? Do we not want to evaluate the effectiveness of the power of passport removal in,
“gaining compliance with child maintenance responsibilities”—
I use the Minister’s phrase exactly again—just as much as we do for driving licences? Is it perhaps because, in the case of driving licences, various government agencies need to get their ducks in a row? Are the administrative concerns of various government agencies more important than the genuine and powerful concerns of this House? No. The Child Maintenance and Enforcement Commission has not yet earned the right to be taken on trust. Let this House have the opportunity to examine how these powers work in practice. I beg to move.
My Lords, I support the amendments. If the noble Lord, Lord Freud, presses them, I will happily follow him into the Lobbies.
I took a slightly different route to reach the same conclusion. There have been significant changes to the workload in CMEC. When we set it up 18 months ago, one of the biggest changes related to the fact that the whole of Section 6, as it was then known—the people coming in through the income support route—was a vast administrative, bureaucratic weight that the old Child Support Agency had had to deal with. It never got off the bit; it was treading water the whole time trying to keep up with incoming cases that were not worth having. We had arguments about that.
The significance of the change is that CMEC should be a much easier administrative organisation to run. Therefore, the complaint that there was not the capacity to deal with the administrative on-cost of the extra time and effort involved in going through the court process in its entirety is now much less applicable, because the organisation has a much smaller administrative workload.
This would have been much safer if CMEC had worked for some time, not just a year or 18 months. The noble Lord, Lord Freud, is right: it is still in its relative infancy. It is a shame that CMEC’s quarterly statistics are published only tomorrow; it will be interesting to see how it is getting on and I look forward to reading them in some detail. I have no great expectation that the trends of residual debt and all the other things will have changed much. This will take some time.
If CMEC and the child commissioner had looked at this, run it for a few years and then come back to Parliament with some data showing a trend that we could follow that demonstrated that there were significant numbers of low-income families with children who were not getting support from parents who could pay but would not, that would have been substantially different. I yield to no one about the need to get that child maintenance to those hard-pressed families; anyone who took part in the passage of the Bill could see that the case was made that, in some cases, more urgent and active steps needed to be taken.
The House took a serious look at this and sent it back, so for CMEC to come back the following year and ask Ministers to try to promote it again is pushing its luck, if I may use that colloquialism. I slightly resent that. A two-year sunset clause is entirely appropriate; in fact, I would have liked a slightly longer one, but I understand the importance of keeping the driving licence and passport provisions in tune with one another with regard to the two-year period. However, if we are to go through the whole process of pursuing these non-resident parents, I think that it will take more than two years to amass a body of data that will be useful to present to the House to see whether the sunset clause should be triggered. Subject to the fact that I would have liked the period to have been slightly longer because we would have had more data to work with, it is right that the amendment should be tabled and I shall certainly vote for it. I hope that the rest of the House will as well.
My Lords, I am inclined to support the amendment. It is important that we make it clear to all potential fathers, particularly to young men, that they will suffer severe penalties if they do not pay their child maintenance—that means, if they have a child. The default situation at the moment seems to be that, if you have a child and you have not really made any commitment to it, then you just forget about it. The previous Government brought forward the child maintenance Bill, but it has not worked. Then there was the other Bill—I forget its name—which has not worked. We now have a third attempt to make this thing work and I reckon that it is about our last chance. It is incredibly important that young people, particularly young fathers, are given the strong feeling that it is the opinion of our society that a father is equally responsible as the mother for a child who is brought into this world.
My Lords, I thank the noble Lord, Lord Freud, for the amendment and I thank other noble Lords who have spoken. Once again, this has been a robust, if short, discussion.
I agree with the noble Lord, Lord Northbourne, that we should send strong messages to people about their commitments to their children. On that basis, I am surprised that he would wish to support the amendment if it were to go forward.
I am grateful for the noble Lord’s clarification.
The noble Lord, Lord Freud, referred to somebody’s right to leave and return to their own country unimpeded. That is right, but we should remember and recognise, as did the noble Lord, that the provisions kick in only when there has been wilful default and every other avenue for collecting money from the non-resident parent has been unsuccessfully explored and where the individual has the resources to deal with their commitments. The individual has it absolutely within their power to pay up and to regain their travel documentation or their driving licence. If they think that their assessment is wrong, they can appeal to the magistrates’ court, which stays the proceedings.
The noble Lord, Lord Kirkwood, complained about bringing this back a year later. We said when we debated the provision in relation to the child maintenance Bill that we reserved the right to return to it. Effectively, we conceded the point only as a means of wrapping up the other issues that were still on the table. The noble Lord, Lord Skelmersdale, whom I see smiling, will remember our exchanges on that. We have never conceded this point.
The noble Lord, Lord Kirkwood, said that because Section 6 compulsion has gone, the organisation should be better able administratively to get to the courts. However, the other side of that coin should be an acceptance that CMEC will be more on top of getting the sums right and making sure that the collection procedures are as powerful as they can be. Therefore, there will be fewer residual cases to which the provisions might have to be applied.
While all sides of the House can, I believe, agree on the need for the commission to take robust enforcement action where arrangements to pay child maintenance break down, I acknowledge—it has been repeated today—the differences of opinion among noble Lords about the specific measures detailed in Clause 42 and, in particular, their effectiveness in securing compliance with child maintenance obligations.
I hope that I can seek to allay any such concerns by accepting the amendments in principle and thereby giving Parliament the ability to review the travel authorisation provisions in the same way as already provided for in relation to the driving licence provisions by Clause 43. While the wording proposed in the noble Lord’s amendment is adequate for this purpose, I should be grateful if he did not press it at this stage so that I can return to the House with a more suitable form of amendment at Third Reading. The amendment that we would look to introduce would ensure that a report on the operation of the driving licence and travel authorisation powers must be put before Parliament within six months of the end of a two-year review period. Based on the success of the measures, the Secretary of State would have the option of making the administrative system permanent or reverting to the existing court-based powers. Any decision to maintain the administrative system would need to be made by an order subject to the affirmative procedure and noble Lords would thereby have an opportunity to debate the success of the measures prior to a permanent administrative system being introduced.
The driving licence and travel authorisation provisions are two significantly different forms of enforcement with potentially very different impacts on the persons affected. It is therefore right that the piloting aspects be provided for in separate clauses. This will be the crucial difference between what we propose to bring back and what the noble Lord has tabled. It would enable, if required, a decision to be made in one way in respect of travel documentation and another way in respect of driving licences. There is some doubt as to whether that could be achieved by the existing wording, so it would be the essential difference in what we would bring back. I am satisfied that piloting the two provisions separately may enhance Parliament’s ability properly to review the outcome and to decide whether the commission should retain such powers permanently.
As has been referred to, the Government have until now resisted such an amendment. We consistently said that it was unnecessary, given that the primary aim of the driving licence pilot was to test the impact on road safety and implications for third parties, whereas the travel authorisation provisions contain no such risk. We stand by that view. However, we recognise the secondary objective of the pilot—the noble Lord referred to it—which is to measure how effective the administrative powers are in securing maintenance payments. On that basis, I am content that the travel authorisation powers should also be made subject to a pilot.
I do so in part in recognition of the long way that noble Lords opposite have come on this issue. It has been an interesting journey, from outright condemnation of the administrative approach during the passage of the Child Maintenance and Other Payments Bill, to supporting the Commons earlier in the passage of this Bill and now to making the proposal before us today. However, it would be churlish to press that point. While perhaps not always a coherent approach, I welcome noble Lords’ movement towards the Government’s position and so am content to make the change to the Bill that they propose. We are happy to move closer to their position on this point. On the basis that I commit to returning at Third Reading with a new amendment, I hope that the noble Lord will feel able not to press his amendment.
My Lords, I am delighted that the word “churlish” is to be banished from considerations in this House. I am not going to spend a lot of time on this. We have rehearsed the arguments on why it is desirable to give the House a chance to have another look at this matter. The Minister summed it up, although it was perhaps not what he meant to say, when he said that CMEC should be able to do things with less pressure on it now because of the variance in administration. That is exactly the point that we want to look at. It should be able to, but does it? In practice, what the Government propose—looking at a separate pilot in two years and six months, or as near to that timetable as you can get in getting Bills through—would satisfy our requirements to have the oversight. Accordingly, I beg leave to withdraw the amendment.
Amendment 79 withdrawn.
Clause 43 : Report on operation of driving licence amendments
Amendments 80 to 83 not moved.
Schedule 6 : Registration of births
84: Schedule 6, page 93, line 28, after “subsection” insert “by regulations made by the Minister”
Amendment 84 agreed.
85: Schedule 6, page 94, leave out lines 12 to 19 and insert—
“(6) The Minister may by regulations provide that, except in such cases as the regulations may prescribe, where the mother is required by subsection (1) to give information relating to the father—
(a) the mother’s duty under section 2A to sign the register is to have effect as a duty to sign a declaration in such form as may be so prescribed,(b) the registrar is not to register the birth of the child until such time as may be determined in accordance with the regulations, and(c) the entry in the register is to be taken for the purposes of this Act to have been signed by the person who signed the declaration.”
My Lords, this group of amendments was first tabled in Committee but subsequently withdrawn following some confusion about the wording of the Births and Deaths Registration Act 1953, which they amend. That issue was clarified by my noble friend Lord McKenzie of Luton in his letter of 17 July, a copy of which may be found in the Library.
These are technical amendments, necessary to effect new Sections 2B, 2C and 2D in the Births and Deaths Registration Act 1953. These sections cover the processes to be followed in cases where unmarried parents are acting separately, because they cannot or will not register jointly in the usual, co-operative way. I explained in Committee the background to these proposals so I shall try not to repeat myself unnecessarily today.
In brief, the amendments seek to ensure that the processes to be followed by parents under our new proposals are as streamlined as possible. Under the joint birth registration provisions, most parents will register together, as they do now. However, in those exceptional cases when parents cannot or will not register the birth together, they may be required to provide information separately to the registrar. In some of these cases, the mother will give the registrar her required information in advance of the father providing his details. At this time, she will also give details of the father to the registrar, so that the registrar can contact him and require him to co-operate with the registration process. These amendments ensure that the mother will not be required to return again to the register office to sign the register once the father has been contacted. Instead, she will discharge her duty to sign the register by signing a declaration when she first attends. Therefore, when the birth is registered, once the father’s information has been obtained, the entry will be considered to have been signed by the mother.
We are currently in the process of developing detailed regulations—in close co-operation with the General Register Office—and it is essential that our regulation-making powers are sufficiently flexible to enable us to develop processes that are as straightforward as possible for those involved, particularly the parents themselves. We wish to avoid introducing, through these proposals, any unnecessary burdens for parents or registrars. For that reason, I beg to move.
Amendment 85 agreed.
Amendments 86 and 87
86: Schedule 6, page 94, line 45, leave out “and”
87: Schedule 6, page 95, line 2, at end insert “, and
(d) provide that in prescribed cases where the alleged father is not required by the regulations to sign the register, the entry in the register is to be taken for the purposes of this Act to have been signed by the alleged father.”
Amendments 86 and 87 agreed.
87A: Schedule 6, page 95, line 23 at end insert—
“(1A) The father of the child does not automatically acquire parental responsibility by virtue of his name being registered on the birth certificate under section (1)(a) if, following a declaration by him to the registrar under this section or section 10B, the mother makes a legal declaration in a prescribed form to the registrar explaining that she has reasons to fear for her safety, or that of her child if the father acquired parental responsibility.
(1B) Subsection (1A) applies only if the mother’s declaration is supported by an approved professional, to be defined in regulation.
(1C) The Secretary of State must, by regulations made by statutory instrument, define an “approved professional” for the purposes of subsection (1B).
(1D) A statutory instrument containing regulations made under subsection (1C) shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
My Lords, this amendment is different from the one I moved in Grand Committee on the subject of joint birth registrations and has been suggested by the NSPCC—surely one of the most recognised authorities in the country on families who experience domestic violence, particularly against children. The principal difference in the two amendments is that the one I moved in Grand Committee would have precluded the father from being on the birth certificate if the mother said that she or her child was at serious risk of danger from the father. This amendment recognises that all children have a right to know their birth heritage, so the father's name would be registered, but he would not necessarily acquire thereby full parental responsibility if the mother believed that the father posed a risk to her child.
In the Bill, if the unmarried mother alone registers the birth and does not provide crucial information about the father such as his current address, he cannot be contacted and cannot be registered because no data will be considered by the registrar that cannot be verified. However, the loophole that we seek to close is this: if the father contacts the registrar separately and before the mother registers the birth, giving his name and address and, later on, when the mother comes to register the child's birth perhaps inadvertently she confirms the father's name, the father has acquired full parental responsibility. The mother might say, “Yes the father is John Brown but I don’t know where he lives and I don't want to know because he is a violent man”. The register might have no option but to say, “But John Brown came in yesterday and gave me his address, saying he was the father of the child. You have just confirmed that, so he has now acquired full parental responsibility. If you had come in before him, I could have taken into account the fact that you do not know where he lives and do not want to know because he is a violent man. But now you have confirmed that he is the father, we have his address and he has now automatically acquired full parental responsibility”.
Under the amendment and in order to close that loophole, if the father sought to register the birth separately and before the mother, the father's name would still be on the child's birth certificate but he would not automatically acquire parental responsibility. He would need to apply for that responsibility through the courts under Section 4 of the Children Act 1989. That is the first safeguard for the mother and child.
The second safeguard in the amendment is to ensure that the mother does not maliciously invent a story of domestic violence to stop the father from acquiring parental responsibility. We are saying that the mother would be required to make a legal declaration in a prescribed form to the registrar explaining that she had reasons to fear for her safety or that of her child. That declaration would be supported by an approved professional such as a midwife, health visitor, social worker, GP or other such person. Such approved professionals should have had training in child protection, domestic violence and abuse matters, and understand both the nature and effects of psychological and physical violence on mothers and children.
Turning to the Government’s arguments against this kind of safeguard, in Committee the Minister said that registrars do not wish to take on the quasi-judicial role of deciding who is and is not fit to exercise parental responsibility. We do not want that either. We are simply saying that, where serious concerns are raised by the mother, in the form of a legal declaration about violence or abuse, and are supported by an approved professional, it is safer for the child if the father applies to the court for parental responsibility. If the Bill is passed in its current form, the responsibility could pass to the mother to apply to the court to restrict the father’s exercise of his parental responsibility—not something that she would wish to be burdened with, having just given birth.
The Minister also said that registrars do not ask married mothers whether they prefer not to have the father’s name on a birth certificate, or whether they would prefer to limit the father’s parental responsibility. I found this an extraordinary statement, and one that does not recognise the serious concerns of those in the field, such as the NSPCC and Gingerbread. They are worried about this loophole in the Bill, which I have spoken about. The word “prefer” does not come into it if the father is violent or abusive.
Finally, the Minister said that if there is a genuine problem, the Government should take a proper look at the evidence that exists to address any problems in a coherent way. The NSPCC has many case studies to illustrate why it thinks that there is a problem, but this is not the place or time to read any of them out. The NSPCC says that the rights conferred as a result of parental responsibility can be manipulated and present a threat to children. Parents with parental responsibility have the right to a say in all important matters in relation to the child, including the child’s name, education, medical treatment and decisions about where the child lives. The case examples given to me clearly show that there are circumstances in which the courts consider that the potential to misuse parental responsibility is so great that it would not be in the child’s best interests for it to be awarded.
In general, courts are minded to award parental responsibility to unmarried fathers, since they can use other measures to address child protection. For example, the court may award an unmarried father a parental responsibility order, but refuse an application for contact and introduce a prohibited steps order to prevent him taking certain actions. The NSPCC is concerned that, under the Bill, fathers in the case examples that it has given would automatically acquire parental responsibility, even where registrars are informed about the mother’s child protection concerns, and without the opportunity for rigorous scrutiny and the introduction of other measures to protect the child that courts can introduce.
To sum up, the proposed exemption will affect only a very small number of unmarried fathers, where they have contacted registrars independently of the mother, and she has made a legal declaration—supported by an approved professional—that he poses a risk to her and her child. In these circumstances, unmarried fathers can still acquire parental responsibility by making an application to the court under Section 4(1)(a) of the Children Act 1989, as they are currently able to do. This is safer for children than automatically awarding parental responsibility when child protection concerns are raised. Registrars should inform fathers that the option to apply for parental responsibility is available to them. We would also encourage some flexibility so that, if the courts consider that it is inappropriate to award parental responsibility, fathers are able to reapply for parental responsibility at a later stage. I beg to move.
My Lords, I support the amendment. I remind the Minister that I took part at an earlier stage of the Bill. I am grateful to the noble Baroness, Lady Thomas, and to the noble Lord, Lord Kirkwood, for taking up this issue on my behalf, as I was involved in the transatlantic airline bombing trial and was not able to be here. However, previously I spoke of my concerns about domestic violence and how elements of it could be addressed in the Bill. I thank the Minister for his sensitivity to the issue and for having addressed some of my concerns.
In light of the concerns expressed by noble Lords in Grand Committee, we looked again at how we could address their fears. Concern was expressed that vindictive mothers could block willing fathers from taking paternal responsibility. We wanted to find a formula that could address that, because such women exist and it would be silly to deny that. It is right and proper that the Government should seek to embody in law the responsibility that parents, especially fathers, must take for their children. Indeed, there is growing concern that insufficient attention has been paid to paternal responsibility in the past; we agree with that. However, our concern, and that of some major charities and organisations that deal with domestic violence, is the small number of cases in which violence is clearly involved. Research shows that domestic violence often rears its head when women are pregnant and that it often accelerates in the months before the arrival of a newborn.
We are concerned that a new mother who has just delivered a baby is expected to go through the courts to seek to remove the paternal responsibility, which is automatically inserted if the father has registered the birth. We are asking that the opposite should apply—namely, that a father against whom there is evidence of abuse has to be proactive in securing paternal rights. He should have to go to the court to obtain a remedy and to have his paternal responsibility invoked. The amendment would secure that. The father would automatically be given parental responsibility, but not if the mother made an independent declaration supported by an appropriate professional. Therefore, safeguards would be in place and the provision would be invoked only where the woman who had given birth really feared for her safety and that of her child and perhaps other children if the parental responsibility was automatically conferred on the declaring father.
I endorse what the noble Baroness, Lady Thomas, said. No one imagines that this measure would be used in many cases, but in serious cases where there is a particularly controlling and abusive father one has to ensure that these steps are taken to prevent his using his declaration as yet another metaphorical stick with which to beat his partner. I ask the Government to look again at this measure. I say immediately that I am very conscious of how alert the Government are to domestic violence issues, but those of us who deal with these cases in the courts know that abusive partners and fathers often try to secure rights that perhaps should be limited. The amendment would put the burden on the father, rather than on the mother, to go through this process.
My Lords, I support the amendment. First, I apologise to the House that I have not been here so far during the passage of the Bill. This is a discrete issue about which I feel quite strongly. In principle, I support the registration of the birth of a child in the names of both parents, but there are a few exceptions. Those were raised by the noble Baroness, Lady Thomas, who set out the case for the amendment extremely coherently and eloquently.
A small minority of fathers misuse parental responsibility to the risk of the mother and child. I understand that in Committee the Government said that there was no risk to mothers and children from parental responsibility. I have to say that I disagree, from my own experience as a judge trying these very cases. I have tried a series of cases where, under the present law, fathers had to go to court and had to ask for parental responsibility. In a number of cases, I have had to say no. I remember one case vividly. It involved a girl from Liverpool whose father was a sexual abuser who abused her as a child. Her uncle was a sexual abuser who abused her and the child she bore. She went to live with a man who turned out to be a sexual abuser and she had to move again. She found yet another man to be the father to her child and he, too—can you believe it?—was a sexual abuser. The case came before me because he was violent to her and he was abusing the small child, and social services said that they had to take the child away from the mother. These cases happen.
I know of another case where the girl was living with a man who made her pregnant. He was extremely violent towards her. She ran away to a refuge, where she was anxious, for obvious reasons, that he should not know where she was and he should not come near her or the child, who was born while she was in the refuge.
Under the government proposals, if that man went separately to the registrar and asked to have his name added, he would automatically acquire parental responsibility. He would search the mother out and he might well be violent toward her. But it is perhaps more worrying that parental responsibility gives the man rights as well as responsibilities. He would have a right to tell her where he wanted the child to go to school. The importance of that is that, if he knew where the child was at school, he could be in touch with the mother and could be violent towards her, because he had found her. He could also be violent towards the child. Fathers, even fathers who love their children, are from time to time sufficiently violent that some children die. We have a record in this country of the death of something like two children a week by their father or stepfather. That is a very small minority, but the automatic granting of parental responsibility carries with it a risk from violent fathers.
It is the child who is more important than the mother, but if the mother thinks that she will be injured—she may be—or thinks that the child may be injured, the care that she is giving to the child is less good than it should be, because she is always fearful of what might happen to both of them, and so the welfare of the child suffers from that fear.
If the Government believe that the automatic granting of parental responsibility does not carry a risk for a small minority, I can tell them from my own experience as a judge that it really does. Whether this is the right formulation of the way to protect the mother and child, I do not know. I came late to this. I was alerted to the amendment and felt that I should express my view. I strongly advise the Government to look at this lacuna in their proposed new law to address the risk that another mother and child will be injured, or a child will be killed. This is a very serious matter and I support the amendment.
My Lords, I add my support and thanks for the changes that have been made and for the acceptance of the centrality of the welfare of children as the main concern of the Bill. I am concerned about violence among some minorities, particularly in cases of forced and polygamous marriages, where the women have very few rights. Women who run away with a child are considered to be dishonouring the entire clan and family. It is not unheard of for gangs of uncles and brothers to murder women who have been abused and beaten and to take the child away. Although these women and children are in a minority, they have rights and must be protected.
My Lords, I have listened with care to the arguments put forward by the noble Baroness, Lady Thomas, and supported so ably by the noble Baronesses, Lady Kennedy and Lady Afshar, and by the noble and learned Baroness, Lady Butler-Sloss. The amendment would prevent the automatic acquisition of parental responsibility by the man who makes a declaration to the registrar that he is the father, if the mother, supported by an approved professional, declares that she has reason to fear for her safety. The noble Baroness, Lady Thomas, rightly identified the fear of some women and it is understandable that she seeks to ameliorate it. However, I am not sure that this is the correct way to do it.
The point of registration of births is, first and foremost, to fill out the details of a child’s birth, including the details of both parents. Birth registration under this reading is not the mechanism or the place to prevent violence. An interesting conflict is developing here with evidence given in Committee by the noble Baroness, Lady Crawley. She said that the Government knew of no compelling evidence that registering the birth and acquiring responsibility make a man violent or exacerbate violent behaviour. That would seem not to be the same experience as the noble and learned Baroness, Lady Butler-Sloss, outlined in her hard-hitting testimony.
The Minister went on in Committee to say that the violence of these men must be dealt with independently of the birth registration system. I concur with that. Any violence or threat of violence must be dealt with quickly, fairly and comprehensively. However, I do not think that we will achieve that goal by adding into the mix an extra complication to the birth registration process. The issue of parental responsibility is fundamentally important. Responsibility should be removed only by the courts and not, as the amendment of the noble Baroness would allow, by a decision taken by the registrar of births, even if it is on the advice of a professional.
I am sympathetic to the motives of the noble Baroness—I am sure that we all are—but I cannot support the methods that she advocates in her amendment. However, there is an implicit challenge here to the Government to find a more appropriate solution to this genuine problem.
My Lords, I had not intended to speak to this amendment but, having heard what the previous speaker said, I thought that I should say that I feel strongly that an extremely good solution is being proposed by the noble Baroness. It is one that does not demonise fathers, because that is certainly not the intention, but I am afraid that those of us who have dealt with families in courts—I was the chairman of a juvenile court for more than 25 years—have too many examples of the sort of experience that we are talking about. This is a very moderate and, more to the point, very effective amendment. The NSPCC made its case extremely well in the briefing that it sent to us and I warmly support the amendment.
My Lords, I, too, come lately to this issue, but I have been listening to the argument. The argument for finding protection for the mother and child in these circumstances seems to be absolutely overwhelming and, if that can be evaded simply by the fact of registration, we need to do something about it. I agree with my noble friend that it is a challenge to the Government but, if they cannot bring forward a better way, I shall certainly support the amendment.
My Lords, I, too, support the amendment. As the noble Baroness, Lady Kennedy, said, it seems unfair to expect the mother of a newborn baby to go to court to prevent the father of her child from having contact with her and the child. It is very important that in the first few months and years of his or her life, a child lives in peace and not in fear. I understand that the fear of the mother, even while the child is still in the womb, can be conveyed to the child, so it is very important that, where we can, we ensure that this does not happen.
My Lords, I thank noble Lords for this short but very important debate. We had an extensive debate in Committee on these issues surrounding domestic violence and circumstances where mothers fear risk of harm.
The provisions in the Bill are targeted at a minority of cases where parents who are not married to each other do not already register together. The birth registration system has never been used as a means to determine whether an individual deserves to be awarded parental responsibility and I believe that it would be wrong to seek to use it in this way. It would be particularly odd to do so only for this subset of unmarried fathers.
I do not believe that we have yet been presented with any compelling evidence for targeting this group of fathers in such a way. I inquired about this with the department, which has asked Gingerbread and the NSPCC for evidence of a specific link between the birth registration process, which brings parental responsibility, and violence by the father, but we believe that that has not been forthcoming.
My Lords, I understand that and I say to the noble Baroness, Lady Thomas, that none of us wants to see vulnerable mothers or children without protection or safeguards in this process. That is why, as the noble Baroness will know, we have put exemptions in the whole birth registration process, so that if mothers fear for their safety or that of their children, they can use the exemptions. I was simply referring to what the department feels is a lack of hard evidence that the birth registration system is linked to the possibility of violence.
The problem is not the birth registration but the granting of parental responsibility which follows automatically from the birth registration. As that has not happened in the past with unmarried fathers, you would not yet have the link; it has not arisen.
I understand that. Of course I listen very carefully to the great experience of the noble and learned Baroness, Lady Butler-Sloss, in this matter. I would like to offer noble Lords who have spoken in this debate a meeting with Ministers before Third Reading so that they can bring their concerns to the department. Many who have spoken in this debate did not have an opportunity to be part of our discussions in Committee, so I should be very happy to offer the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Thomas, my noble friend Lady Kennedy, and so on, a meeting so that we can look at their concerns—specifically the use of birth registration and the parental responsibility that, as the noble and learned Baroness, Lady Butler-Sloss, said, follows. We can discuss the Government’s preferred alternative of going through the court system rather than using this process. We are happy to have that discussion.
I wonder whether I can clarify that. Is the Minister saying that she will offer a meeting to discuss ways in which the legislation can be amended to take account of these concerns? She started off by saying that there is no hard evidence. She clearly had not listened to the contribution of the noble and learned Baroness, Lady Butler-Sloss, when she said that. What would be the purpose of the meeting? Would it be to discuss how these concerns, which were already raised in Committee and on Report, could be addressed in practice?
I listened extremely carefully. Noble Lords would expect me to show great respect to the noble and learned Baroness, Lady Butler-Sloss, when she speaks, and of course I listened carefully. I was offering a meeting to discuss these extremely serious matters which I am sure noble Lords will want to discuss with Ministers. At this stage in the Bill, however, I am not of the opinion that I wish to accept the amendment moved by the noble Baroness, Lady Thomas. Perhaps that clarifies the position.
So far we have not seen convincing arguments for adopting a different approach to this small percentage of fathers, particularly in light of the figures from the British Crime Survey which I quoted in Committee and which indicated that the women most likely to be affected by domestic violence are those who are divorced or separated from their husbands, not those who are single or co-habiting.
As for the risk attached to the acquisition of parental responsibility, a number of examples were mentioned in Committee—such as a dangerous individual being allowed to collect the child from school. While this is not necessarily a question of parental responsibility, perhaps it does highlight the need for some schools and other organisations to improve their practice. It is helpful for such examples to be brought to our attention. However, it does not follow that the question of whether or not unmarried fathers should be given parental responsibility should be determined through the birth registration process at the earliest stage of a child’s life. Decisions about removing or restricting parental responsibility are extremely serious and should be made only on the basis of clear evidence and by means of a process that is able to take account of evidence across the board.
That is why we believe that it is right that these decisions should fall to the courts. There are existing mechanisms for controlling the behaviour of dangerous individuals, be they men or women. We discussed those mechanisms in some detail in Committee, so I shall not take up the time of the House by repeating them. I want to make it clear that our provisions seek to avoid any action being taken by the state that may provoke an abusive partner. That is why, under our new provisions, no steps will be taken by a registrar to contact the child’s father in cases where the mother has stated that she fears harm as a result. However, at the same time, the provisions recognise the importance of a child’s right to know his or her identity, to be acknowledged by both parents and to know that both parents take responsibility for him or her. That is why they do not prevent a father coming forward of his own accord in order to have his name recorded as the child’s father.
When parents are married at the time of the child’s birth, both will be named on the birth certificate. In the case of births where parents are not married to each other, 85 per cent are already registered jointly. The policy will therefore affect only a very small percentage of unmarried parents. But these provisions are not about the parents. Although they do strike a fairer balance between the rights of each parent, they are about the child. Debates in Committee touched on the importance of a father being involved in his child’s life and the difference this makes in terms of outcomes. This is our focus.
Measures to ensure the safeguarding of children and vulnerable individuals continue to be a very high priority for this Government. With regard specifically to registrars, we shall be considering what action needs to be taken in the light of responses to the recent Home Office consultation on preventing violence against women.
The noble and learned Baroness, Lady Butler-Sloss, set out her great experience in this matter, to which we listened with great respect. We believe that it is right that decisions to limit the parental responsibility of either the father or the mother should be taken by the court on the basis of all the relevant evidence before the court at the time.
The noble Baroness, Lady Afshar, said that we need to be aware of the rights of ethnic minority women and the need to protect vulnerable women. It is important that we remember that it is not single or cohabiting women who are most likely to be the victims of domestic violence; it is married women where joint birth registration is already required.
The noble Lord, Lord Freud, agreed with the Government that it is not the birth registration process that is needed for dealing with violent men; the avenue that is needed is the courts. My noble friend Lady Kennedy spoke of the importance of dealing with violent men. We anticipate that the majority of men who come forward independently of the mother will be men who genuinely want to play a positive part in their child’s life. But where this is not the case, we believe that the courts rather than the birth registration, and the parental responsibility process that is linked to it, should be used to deal with violent men. On that basis, I ask the noble Baroness, Lady Thomas, to withdraw her amendment.
My Lords, I thank all noble Lords who have supported the amendment. We heard some powerful contributions, in particular from the noble Baroness, Lady Kennedy of The Shaws, and the noble and learned Baroness, Lady Butler-Sloss, who has great experience in these matters. Her speech was devastating to the Government’s case in addressing this loophole.
I mentioned a loophole which the Minister has not addressed at all. It is the circumstance in which the father contacts the registrar before the mother—the mother perhaps inadvertently having said that he is the father. The father, perhaps an abusive and violent man, then acquires full parental responsibility for the first time. I included in the amendment the safeguard that the mother must have a professional supporting her so that she does not make a malicious declaration.
I thought that the amendment produced by the NSPCC was extremely neat. This is a new situation. We cannot say that that has nothing to do with the birth registration, because the Government have made it part of it by putting it in the Bill. I am extremely tempted to test the opinion of the House, but I know this House. As the Minister has suggested a meeting, immediately everyone wants to go to the meeting to put the case, so I know that the momentum will have gone out of the vote. But I ask the Minister whether such a meeting might lead to a government amendment at Third Reading.
If it does not, I am still tempted to test the opinion of the House, but if the meeting is genuine with the possibility of an amendment, I will withdraw the amendment. I ask the noble Baroness to intervene to tell me whether there is the possibility of finding an amendment at Third Reading to reflect the debate that has taken place today. The comments made, especially by the noble and learned Baroness, Lady Butler-Sloss, who knows about the matter, should not be ignored.
I am not asking for a cut-and-dried guarantee, I am just asking for the possibility—as long as the noble Baroness does not say that it will just be a discussion, as long as there is the possibility of an amendment at Third Reading. If not, I hope that the House will agree that I have the right to bring back an amendment at Third Reading, although I know that the House is wary of amendments at Third Reading when there has been long discussion at the previous two stages. If I can be assured that there is the possibility of a government amendment or if they will accept my amendment, on that basis, I will gladly accept her offer of a discussion and will beg leave to withdraw the amendment.
The noble Baroness is entitled to raise an amendment, if she wishes to; she is entitled to test the opinion of the House if she wishes to. I certainly say to her that we would go to a meeting with a very positive attitude, but I cannot say any more than that.
Amendment 87A withdrawn.
Amendments 88 to 92
88: Schedule 6, page 95, line 32, leave out “and”
89: Schedule 6, page 95, line 35, at end insert “, and
(d) provide that in prescribed cases where the person is not required by the regulations to sign the register, the entry in the register is to be taken for the purposes of this Act to have been signed by the person.”
90: Schedule 6, page 101, line 30, leave out “2B(4)” and insert “2B(1), (4)”
91: Schedule 6, page 102, line 4, leave out “2B(4)” and insert “2B(1), (4)”
92: Schedule 6, page 102, line 7, leave out “2B(4)” and insert “2B(1), (4)”
Amendments 88 to 92 agreed.
Schedule 7 : Repeals and revocations
Amendments 93 to 96
93: Schedule 7, page 105, line 34, column 2, leave out “and (3)(a)” and insert “, (3)(a), (7A), (8)(aa) and (8A)”.
94: Schedule 7, page 106, line 33, column 2, at beginning insert—
95: Schedule 7, page 108, line 26, at end insert—
“Saving Gateway Accounts Act 2009 (c. 8) Section 3(2)(a).”
“Saving Gateway Accounts Act 2009 (c. 8)
96: Schedule 7, page 108, line 27, column 2, at beginning insert—
“Section (Lone parents)(1).”
“Section (Lone parents)(1).”
Amendments 93 to 96 agreed.
Clause 50 : Extent
Amendments 97 and 98
97: Clause 50, page 52, line 4, after “provisions);” insert—
“section (Power to rename council tax benefit) (power to rename council tax benefit);”
98: Clause 51, page 52, line 17, at end insert—
“section (Power to up-rate benefits following review in tax year 2009-10);”
Amendments 97 and 98 agreed.